RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 August 2005
      DOCKET NUMBER:  AR20040011579


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to a
more favorable discharge that will afford him benefits from the Department
of Veterans Affairs (VA).

2.  The applicant states, in effect, that clemency is warranted in his case
because it is an injustice for him to have to suffer the adverse
consequences of a bad discharge, because his average conduct and efficiency
ratings were good, because he had combat service and a prior honorable
discharge, because he was generally a good Soldier, and because he has been
a good citizen since his discharge.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 May 1976.  The application submitted in this case is dated
30 November 2004 and was received on 20 December 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  He was born on 30 November 1947 and enlisted in Philadelphia,
Pennsylvania, on 29 February 1968 for a period of 2 years.  He completed
his basic combat training at Fort Bragg, North Carolina, and his advanced
individual training (AIT) at Fort Sill, Oklahoma.

4.  Upon completion of his AIT he was transferred to Vietnam for duty as a
field artillery cannon crewman.  He was initially assigned to A Battery,
1st Battalion 84th Artillery Regiment, 9th Infantry Division.

5.  He was promoted to the pay grade of E-5 on 1 April 1969 and on 12 July
1969 he was transferred to Headquarters Company, 2nd Brigade, 9th Infantry
Division.
6.  On 18 July 1969, he departed Vietnam and was transferred back to Fort
Sill.  On 7 December 1969, he was honorably discharged for the purpose of
immediate reenlistment.  He reenlisted on 8 December 1969 for a period of
6 years.

7.  On 15 December 1969, nonjudicial punishment (NJP) was imposed against
him for failure to go to his place of duty and for being incapacitated for
the proper performance of his duties due to over indulgence in intoxicating
liquor.  His punishment consisted of a reduction to the rank of corporal
(suspended for 3 months) and a forfeiture of pay.

8.  He was transferred to Germany on 29 March 1970 and was assigned as a
section chief of an artillery battery in Nuernberg.  The applicant
requested ordinary leave from his commander for the purpose of getting
married and he neither returned as scheduled nor did he get married.  He
was reported as being absent without leave effective 18 July 1970.

9.  He remained absent in a deserter status until he was arrested by civil
authorities in Philadelphia on 14 August 1975 for possession of controlled
substances.  He was subsequently returned to military control at Fort
Meade, Maryland, and on 22 August 1975, he again departed AWOL.  He
remained absent until he was apprehended by Federal Bureau of
Investigations (FBI) authorities on 27 April 1976 and returned to military
control at Fort Dix, New Jersey, where charges were preferred against him
for the AWOL offenses.

10.  After consulting with his defense counsel, the applicant submitted a
request for discharge for the good of the service, under the provisions of
Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In
his request he indicated that he was making the request of his own free
will, without coercion from anyone and that he was aware of the
implications attached to his request.  He also admitted that he was guilty
of the charges against him or of lesser-included offenses which authorized
the imposition of a bad conduct or dishonorable discharge.  He acknowledged
that he understood that he could receive a discharge under other than
honorable conditions and that he might be deprived of all benefits as a
result of such a discharge.  Additionally, he acknowledged that he had been
advised of the facts that must be proven by competent evidence beyond a
reasonable doubt before he could be found guilty, the possible defenses
which appeared to be available and the maximum punishment he could receive
if found guilty.  In addition, he declined the opportunity to submit a
statement in his own behalf.
11.  The appropriate authority approved the applicant’s request and
directed that he be furnished an Undesirable Discharge Certificate.
Accordingly, he was discharged (while on excess leave status) under other
than honorable conditions on 20 May 1976, under the provisions of Army
Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had
served 8 months and 19 days of active service during his current enlistment
and had 2,102 days of lost time due to AWOL and confinement.

12.  He applied to the Army Discharge Review Board (ADRB) on 1 November
1978 for an upgrade of his discharge.  He cited to that board at that time
that he was not told of the impact an undesirable discharge would have on
him, in addition to the same reasons he has cited to this Board.  On 5
January 1979, the ADRB, after considering the applicant’s arguments and
reviewing the facts and circumstances of his case, determined that his
discharge was both proper and equitable.  The ADRB voted unanimously to
deny his request on 5 January 1979.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

14.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.

4.  The applicant's contentions have been noted and found to be without
merit.  The applicant received an honorable discharge for the period he
served in Vietnam and for the most part of his actual honorable service.
The applicant was also serving as a noncommissioned officer at the time and
as such, violated the trust placed in him by his repeated acts of
misconduct.  Given his rank and experience at the time, it is apparent that
he understood the consequences of his actions and his request for discharge
clearly states that he understood the implications of his request and that
he was not coerced by anyone to submit such a request.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 5 January 1979.
As a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 4 January 1982.  The applicant
did not file within the ABCMR's 3-year statute of limitations and has not
provided compelling explanation or evidence to show that it would be in the
interest of justice to excuse failure to timely file in this case.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jev___  __rjw___  ___rr___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  James E. Vick
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011579                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1976/05/20                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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